Citation Nr: 1003771
Decision Date: 01/26/10 Archive Date: 02/16/10
DOCKET NO. 08-12 744 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to a higher Dependency and Indemnity
Compensation (DIC) rate.
2. Entitlement to an earlier effective date, earlier than
April 1, 2006, for the grant of full dollar DIC rate.
ATTORNEY FOR THE BOARD
E. I. Velez, Counsel
INTRODUCTION
The Veteran had active service with the New Philippine Scout
from May 1946 to March 1949.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of October 2007 by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines.
FINDINGS OF FACT
1. The appellant's claim for entitlement to full dollar DIC
rate was received by the RO on April 11, 2007.
2. Prior to April 1, 2007, there was no claim, informal
claim, or intent to file a claim for full dollar DIC rate.
3. The Veteran died in September 1993.
4. The appellant was awarded DIC benefits at the full dollar
rate according to the monthly entitlement amounts specified
by statute with a progressive calculation according to
statute beginning on April 1, 2006.
CONCLUSIONS OF LAW
1. The criteria for an effective date earlier than April 1,
2006, for the grant of payment of DIC benefits at the full-
dollar rate are not met. 38 U.S.C.A. §§ 5110, 5107(b) (West
2002 & Supp. 2008); 38 C.F.R. §§ 3.42, 3.400, 3.405, 3.505
(2009).
2. There is no basis in the law for assigning a higher rate
of DIC benefits. 38 U.S.C.A. § 1311 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.3, 3.4, 3.5 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002),
and the pertinent implementing regulation, codified at 38
C.F.R. § 3.159 (2009), provide that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. They also require VA to notify
the claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim.
However, the U. S. Court of Appeals for Veterans Claims has
held that when the law as mandated by statute, and not the
evidence, is dispositive of the claim, the above provisions
are not applicable. See Dela Cruz v. Principi, 15 Vet. App.
143 (2001); see also Manning v. Principi, 16 Vet. App. 534,
542 (2002); Mason v. Principi, 16 Vet. App. 129 (2002).
In addition, VA's General Counsel held in a precedential
opinion that there is no duty to notify a claimant where the
claim cannot be substantiated because there is no legal basis
for the claim or because undisputed facts render the claimant
ineligible for the claimed benefit and no duty to assist a
claimant where there is no reasonable possibility that such
aid could substantiate the claim. VAOPGCPREC 5-2004. The
Board notes that the essential facts in this case have been
fully developed and are not in dispute.
As there is no legal entitlement to the benefits claimed,
there is no reasonable possibility that further notice or
assistance would aid in substantiating this claim. Thus, any
deficiencies of notice or assistance are rendered moot. See
38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362,
368 (2001) (compliance with the provisions regarding notice
and assistance is not required if no reasonable possibility
exists that any notice or assistance would aid the appellant
in substantiating the claim).
Legal Criteria and Analysis
A. Earlier Effective Date
A specific claim in the form prescribed by the Secretary of
the VA must be filed in order for benefits to be paid to any
individual under the laws administered by VA. 38 U.S.C.A. §
5101(a) (West 2002); 38 C.F.R. § 3.151(a). Any communication
or action, indicating an intent to apply for one or more
benefits under the laws administered by VA may be considered
an informal claim. Such an informal claim must identify the
benefit sought. Upon receipt of an informal claim, if a
formal claim has not been filed, an application form will be
forwarded to the claimant for execution. If received within
one year from the date it was sent to the claimant, it will
be considered filed as of the date of receipt of the informal
claim. 38 C.F.R. § 3.155(a). When an application for
disability compensation is received within one year of the
date of the veteran's discharge or release from service, the
effective date of such award shall be the day following the
veteran's release. 38 U.S.C.A. § 5110(b)(1) (West 2002).
Unless specifically provided otherwise in this chapter, the
effective date of an award based on an original claim, a
claim reopened after final adjudication, or a claim for
increase, of compensation, dependency and indemnity
compensation, or pension, shall be fixed in accordance with
the facts found, but shall not be earlier than the date of
receipt of application therefore. 38 U.S.C.A. § 5110(a); see
generally 38 C.F.R. § 3.400.
However, section 5110(g) provides an exception to this
general rule. Under section 5110(g), a claimant who is
awarded compensation benefits pursuant to a liberalizing law
or VA issue may be entitled to benefits prior to the date of
his application for benefits. In the case of a liberalizing
law that takes effect prospectively, an earlier effective
date may be warranted if the claimant can demonstrate that he
"met all eligibility criteria for the liberalized benefit on
the effective date of the liberalizing law or VA issue and
that such eligibility existed continuously from that date to
the date of claim" or the date of the RO decision granting
entitlement to the benefit. If a claim for benefits is
either reviewed on the initiative of VA or at the request of
the claimant within one year from the effective date of the
law or VA issue, benefits may be authorized from the
effective date of the law or VA issue. 38 C.F.R. § 3.114(a)
(1); McKay v. Brown, 9 Vet. App. 183 (1996). If a claim is
either reviewed on the initiative of VA or at the request of
the claimant more than one year after the effective date of a
liberalizing law, benefits maybe authorized for a period of
one year prior to the date of receipt of such a request. 38
C.F.R. § 3.114(a) (2).
Factual Background
By a rating decision in October 1996, the RO granted DIC
under 38 U.S.C. § 1151 effective April 1, 1995. The award
was based under Philippine Rules of payment.
In June 2001 the appellant filed a claim for payment of her
DIC benefits at the full dollar rate. At the time, the law
did not provide for payment of DIC benefits at the full
dollar rate for survivors of Philippine veterans.
In June 2001, the AOJ informed her that there was no
provision for payment of DIC benefits at the full dollar rate
for survivors of Philippine veterans.
In March 2005 the RO sent the appellant a letter requesting
that she verify her marital status.
In a letter dated in February 2007 the RO informed the
appellant they were working on her possible entitlement to
payment of DIC at the full dollar rate. The RO informed the
appellant that Public Law 108-103, the Veterans Benefit Act
of 2003, allowed payment of DIC at the full dollar rate to
survivors of veterans who served in the Commonwealth Army of
the Philippines, Special Philippine Scouts, or organized
guerilla groups, if the survivors reside in the United States
as United States citizens or aliens lawfully admitted for
permanent residence.
In a statement of April 2007 the appellant stated that she
had been absent from the United States from March 23, 1992 to
May 22, 1992, from August 5, 1996 to November 5, 1996, from
January 16, 1999 to April 22, 1999, from October 28, 2000 to
January 4, 2001, from January 27, 2002 to July 24, 2002, from
October 27, 2003 to May 27, 2004 and from September 6, 2005
to March 2, 2006.
In April 2007, the appellant submitted proof of her status as
a permanent resident of the United States in the form of
photocopies of her Permanent Resident Card and Social
Security Card. In April 2007, the AOJ confirmed the
appellant's status as a permanent resident. In a May 2007
letter, the RO acknowledged having reviewed the appellant's
passport with the following entries: arrival in the
Philippines on October 27, 2003 and departure on May 27,
2004, and arrival in the Philippines on September 6, 2005 and
departure on March 2, 2006. The letter noted that the
passport does not show that the appellant left the U.S. at
any other time thereafter.
In a letter of May 2007, the RO informed the appellant that
her claim to full dollar rate was denied as they had asked
for a additional information, such as a copy of her
Naturalization Certificate of Permanent Resident Status
Certificate and proof of her U.S. residence such as a
driver's license, a current lease or purchase agreement or
utility bill and they had not received the requested
information.
In a July 2007 letter, the RO informed the appellant that
they were awarding benefits at the full dollar rate effective
April 1, 2006.
Analysis
The appellant argues that she is entitled to the full-dollar
amount since the date of the death of her husband in
September 1993.
Initially, the Board notes first that the effective date for
the award of payment of DIC benefits at the full dollar rate
cannot be before December 27, 2003, as the law prior to that
date did not provide for payment of DIC benefits at the full-
dollar rate survivors of Philippine veterans. The law
changed, allowing for survivors of Philippine veterans to be
paid the full dollar amount based upon their citizenship and
residency in the United States.
The appellant became potentially entitled to payment of DIC
benefits at the full dollar rate on the effective date of the
change in the law or December 27, 2003. However, a review of
the record shows that there is no claim, informal claim, or
intent to file a claim for entitlement to payment of DIC
benefits at the full dollar rate prior to April 11, 2007.
The Board acknowledges that there is communication in the
file from the appellant between December 27, 2003 and April
11, 2007. Specifically, the appellant submitted a marital
status questionnaire in March 2005. However, this letter
does not include a request for payment of DIC benefits at the
full dollar rate. Therefore, the letter of March 2005 cannot
be construed as a claim, an informal claim, or an intent to
file a claim.
Here, the first communication from the appellant which can be
construed as a claim is her statement received on April 11,
2007 which she submitted after the RO, in a letter of
February 2007, invited her to submit a claim for payment of
DIC benefits at the full dollar rate. The RO has assigned an
effective date of the award of April 1, 2006. This predates
the appellant's claim. As there was no claim, informal claim
or an intent to file a claim prior to April 11, 2007, there
is no basis on which to grant the appellant an effective date
for payment of DIC benefits at the full dollar rate prior to
April 1, 2006.
The Board does not believe that the provisions of effective
date for liberalizing laws apply in the appellant's case.
Nonetheless, even if applicable, these provisions do not
provide for an earlier effective date than the already
assigned April 1, 2006.
Prior to October 2000, the law provided that disability
compensation payments to veterans who had service with the
military forces of the Government of the Commonwealth of the
Philippines while in the service of the Armed Forces of the
United States should be made at the rate of $0.50 for each
dollar authorized. 38 U.S.C.A. § 107 (West 1991). On
October 27, 2000, the President signed Pub. L. 106-377, 114
Stat. 1441, which amended § 107 to provide full-dollar
payments of benefits but only to the Philippine veteran who
is residing in the U.S. and who is either a U.S. citizen or
an alien lawfully admitted for permanent residence in the
U.S. See 38 U.S.C.A. § 107 (West 2002). On December 16,
2003, the President signed Pub. L. 108-183, 117 Stat. 2651,
which allowed for survivors of all Philippine service
veterans receiving DIC payments to be entitled to full-dollar
payments of benefits while residing in the U.S. 38 U.S.C.A.
§ 107 (West 2002 & Supp. 2008).
In order to be eligible to receive benefits at the full-
dollar rate, a veteran's survivor must reside in the U.S. and
be either a citizen of the U.S. or an alien lawfully admitted
for permanent residence in the U.S. 38 C.F.R. § 3.42(b).
Under section 5110(g), a claimant who is awarded compensation
benefits pursuant to a liberalizing law or VA issue may be
entitled to benefits prior to the date of his application for
benefits. In the case of a liberalizing law that takes
effect prospectively, an earlier effective date may be
warranted if the claimant can demonstrate that he "met all
eligibility criteria for the liberalized benefit on the
effective date of the liberalizing law or VA issue and that
such eligibility existed continuously from that date to the
date of claim" or the date of the RO decision granting
entitlement to the benefit. If a claim for benefits is
either reviewed on the initiative of VA or at the request of
the claimant within one year from the effective date of the
law or VA issue, benefits may be authorized from the
effective date of the law or VA issue. 38 C.F.R. § 3.114(a)
(1); McKay, supra. If a claim is either reviewed on the
initiative of VA or at the request of the claimant more than
one year after the effective date of a liberalizing law,
benefits maybe authorized for a period of one year prior to
the date of receipt of such a request. 38 C.F.R. § 3.114(a)
(2).
Initially, the Board notes that in February 2007 the AOJ sent
the appellant a letter notifying her that they were working
on her possible entitlement to payment of DIC compensation at
the full dollar rate. This letter was not a claim, but
rather an invitation to file a claim. Therefore, this letter
does not impact the effective date of the benefit.
In this case, the effective date of the law allowing full
dollar rate payment for DIC benefits was December 27, 2003.
The appellant submitted a claim which was received on April
11, 2007. Thus, since the review was initiated more than 1
year after the date of the liberalizing regulation, any
retroactive award would be limited to 1 year, or April 2006.
38 C.F.R. § 3.114. However, the appellant must meet all of
the requirements under the law before payment at the full
dollar rate can be made.
In this case the appellant has been awarded payment of DIC
benefits at the full dollar rate effective April 1, 2006. A
review of the record shows that this is the earliest day
possible for the payment of DIC at the full dollar rate.
Prior to that date, the appellant had not continuously met
the requirements under the law. Moreover, the appellant had
not filed a claim for DIC at the full dollar rate since the
law allowing for the same was enacted.
As noted above, the appellant may be paid a retroactive award
limited to a year prior to the date of the filing of the
claim if she meets all of the requirements for entitlement to
the benefit required under the law. The law requires that
the appellant be a U.S. citizen or an alien lawfully admitted
for permanent residence in the U.S. and be residing in the
U.S. in order to receive payment at the full dollar rate. In
order to receive benefits at the full-dollar rate, a
veteran's survivor must be physically present in the United
States for at least 183 days of each calendar year in which
he or she receives payments at the full-dollar rate, and may
not be absent from the United States for more than 60
consecutive days at a time. 38 C.F.R. § 3.42.
A review of the record shows that the appellant is a
permanent resident of the U.S. and has been residing in the
United States for more than 183 consecutive days without
being absent for more than 60 consecutive days. Indeed, the
record shows that while the appellant was in the Philippines
from September 6, 2005 to March 2, 2006, she has continuously
resided in the United States since then. However, as noted
above, the appellant did not file a claim until April 2007.
Therefore, the earliest she can be granted DIC at the full
dollar rate is April 2006. This is the currently assigned
effective date of the award.
The Board notes that prior to that date, the appellant did
not meet all of the provisions under the law. Indeed, the
record shows the appellant was in the Philippines from
October 27, 2003 to May 27, 2004 and then again from
September 6, 2005 to March 2, 2006. Therefore, the record
shows that the appellant was absent from the United States
for more than 60 consecutive days in 2004 and 2005.
Therefore, she did not establish continued entitlement under
the law form the date of the law through the date of the
claim.
Accordingly, the Board finds that the criteria for an
effective date earlier than April 1, 2006, for payment of VA
benefits at the full-dollar rate are not met. The
preponderance of the evidence is against the claim and the
benefit-of-the-doubt standard of proof does not apply. 38
U.S.C.A. § 5107(b).
B. Entitlement to a higher DIC rate
The appellant is seeking a higher rate of DIC benefits.
Specifically, she claims that she is entitled to a higher
rate of the full dollar DIC benefits granted effective April
1, 2006. Certain VA death benefits, including death pension,
death compensation, and DIC are payable to a veteran's
surviving spouse. 38 U.S.C.A. §§ 1310, 1541; 38 C.F.R. §
3.5. The appellant contends, however, that she is entitled
to a greater amount of payment than the RO has determined is
the correct rate.
DIC is paid to a surviving spouse at a rate specified by law.
38 U.S.C.A. § 1311(a)(1); 38 C.F.R. § 3.5. Under certain
circumstances an increased from the specified amount may be
allowed.
The relevant facts in this case are not in dispute. The
appellant contends that she is entitled to DIC at a higher
rate on the basis of her assertion that the RO has
misinterpreted or misapplied the governing laws specifying
the correct amount of payment because she has a friend who is
also receiving DIC benefits but at a higher amount. The
Board finds that there is no basis on which to grant a higher
DIC rate.
The appellant contends, as set out in a statement of November
2007, that she is entitled to a payment in the amount of
$1,322 each month, which is the amount that a friend of hers
has been receiving since 2004 for her DIC benefits.
As noted above, the amount of DIC paid to a surviving spouse
is determined by statute. See 38 U.S.C.A. § 1311. The
monthly rate fluctuates slightly from time to time. 38
U.S.C.A. § 1311(a)(1). The Board notes that the appellant
was initially awarded $1,033 monthly in DIC benefits
effective April 1, 2006. Her benefits have since been
increased to $1,091 effective December 1, 2007. This is the
rate specified in 38 U.S.C. § 1311(a)(1). Therefore, the
issue before the Board is whether the appellant is entitled
to an increase to her DIC benefits.
The basic rate shall be increased by a fixed amount in the
case of the death of a veteran who at the time of death was
in receipt of or was entitled to receive compensation for a
service-connected disability that was rated totally disabling
for a continuous period of at least eight years immediately
preceding death. In determining the period of a veteran's
disability for purposes of the preceding sentence, only
periods in which the veteran was married to the surviving
spouse shall be considered. 38 U.S.C.A. § 1311(a)(2).
In this case, the Veteran was not, at the time of his death,
in receipt of or was entitled to receive compensation for a
service-connected disability that was rated totally disabling
for a continuous period of at least eight years before his
death. Indeed, the Veteran was not service connected for any
disabilities at the time of his death. As such, the
appellant is not eligible to receive increased DIC benefits
under 38 U.S.C.A. § 1311(a)(2).
Although a surviving spouse may not be entitled to an
increased amount of DIC under the basic rate, additional
compensation may be payable to the surviving spouse for each
dependent child of the Veteran under the age of eighteen, in
addition to the basic DIC rate; and/or if it is medically
shown that the surviving spouse is in need of regular aid and
attendance and/or by reason of being housebound. This
additional compensation for aid and attendance or by reason
of being housebound is referred to as special monthly DIC.
38 U.S.C.A. § 1311(c); 38 C.F.R. § 3.351(a)(3) & (4). This
fixed amount of special monthly DIC is also determined by
statute, depending on whether the veteran died before or
after January 1, 1993. 38 U.S.C.A. § 1311.
The monthly rate of DIC payable to a surviving spouse who
does not qualify for increased compensation based on need for
regular aid and attendance shall be increased if the
surviving spouse is permanently housebound by reason of
disability. The "permanently housebound" requirement is met
when the surviving spouse is substantially confined to her
home (ward or clinical area, if institutionalized) or
immediate premises by reason of disability or disabilities
which are reasonably certain to remain throughout the
surviving spouse's lifetime. 38 U.S.C.A. § 1311(d); 38
C.F.R. § 3.351(e). The rate of pay for aid and attendance
status is higher than the rate of pay for housebound status,
and neither the statute nor the regulations provide for the
assignment of both payments at the same time. See 38 C.F.R.
§ 1311(d).
In this case, the appellant does not have dependents of the
Veteran who are under the age of eighteen to warrant
additional compensation under 38 U.S.C.A. § 1311(b). In this
regard, the record shows that she has two children, born in
March 1974 and September 1986. Therefore, the appellant's
children were over the age of 18 in April 2006, the date of
the grant of DIC benefits at the full dollar rate.
Therefore, the appellant is not entitled to a higher rate
based on dependent children.
The record further shows that the appellant is not in need of
regular aid and attendance or on housebound status.
Therefore, the appellant is not entitled to a higher DIC rate
based on these conditions.
In sum, the Board finds that the appellant is receiving the
maximum DIC benefit allowed by statute. See 38 U.S.C.A. §
1311. The appellant was initially awarded $1,033 per month
in DIC payments at the time DIC at the full dollar rate was
granted in April 2006. This was the maximum benefit allowed
under the law and the monthly rate which was in effect at the
time. Her benefits have since been increased to $1,091
effective December 1, 2007. This is the rate specified in
38 U.S.C. § 1311(a)(1). The appellant does not meet any of
the requirements which would allow for an increase in her
benefits. There is no basis in the law for granting the
appellant's claim to direct a higher rate of payment. The
appellant is not entitled to a higher rate of DIC, and as a
matter of law her claim must be denied. See Sabonis v.
Brown, 6 Vet.App. 426, 430 (1994). The doctrine of
reasonable doubt is not for application here as this issue is
resolved as a question of law with no dispute or controversy
regarding the factual record. 38 U.S.C.A. § 5107(b) (West
2002).
ORDER
Entitlement to a higher rate for DIC payments is denied.
Entitlement to an earlier effective date, earlier than April
1, 2006, for the grant of full dollar DIC benefits is denied.
____________________________________________
H.N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs